Excerpt:.....same on tha basis of illegal grounds insufficient for the purpose. district judge appears to have wholly overlooked the averments made by the plaintiffs on the point in the plaint as well as in their application for issuance of temporary injunction to the effect that after the death of allabelikhan, they entered into possession of the suit land. in their affidavits dated 10-5-1977, ganikhan and chhotekhan have clearly stated that after the death of allabelikhan they are in possession of the suit land, and that the crops sown by them are standing on the land in dispute. if the impugned order is allowed to stand, it will occasion failure of justice and cause irreparable injury to the plaintiff-applicants......have been activating the same that the defendants haw begun to deny the plaintiffs' title in the suitland and want to dispossess them forcibly. hence the suit for declaration of title to the effect that the plaintiffs be declared to be bhumiswamis in possession of the suit land and for issuance of a permanent injunction for restraining the defendants from interfering with possession of the plaintiffs ever the land in dispute. 3. along with the plaint the plaintiffs sub-mitted an application for issuance of a temporary injunction on 10-5-1977 in which on the basis of the aforesaid facts a prayer for issuance of a temporary injunction was made restraining the defendants from interfering with possession of the plaintiffs over the suit land. an ex parte injunction was issued by the trial.....

Judgment:ORDER

H.G. Mishra, J.

1. This revision by the plaintiffs is against the order dated 14-7-1981, passed by the Addl. District Judge, Indore, whereby after reversing the order passed by the trial Court dated 12-2-1981, rejecting the application submitted by the defendants-non-appli-cants for issuance of a temporary injunction and allowing that submitted by the plaintiffs for issuance of a temporary injunction restraining the defendant-non-applicants from interfering with their possession over the suit land, the learned Addl. District Judge has vacated the temporary injunction issued against the defendants-non-applicants and has also ordered issuance of a warrant for deli-very of possession to the defendants-non-ap-plicants-herein and has further ordered issuance of a temporary injunction restraining the applicants-herein from disturbing possession of the defendant-non-applicants over the suit land.

2. Facts material for decision of this revision are as under: The applicants along with Chhotekhan have filed a suit on 10-5-1977 against the defendant-non-applicants for declaration of title and issuance of a permanent injunction on the allegations that they are Bhumiswamis in possession of the land comprised in Survey NOS. 437, 439 and 457 situated in village Betma and the land comprised in survey Nos. 475, 471 and 472, situated in village Daulatabad; that in the suit lairds Allabelikhan and after his death Ins-heirs have no right, title or interest; that in 3 previous Civil Suit No. 28-A of 1969, a compromise had been effected to the effect that Allabelikhan will remain in possession of the land in dispute during his lifetime and after his death the land will go to those persons, who are entitled to hold it. Allabelikhan died on 4-5-1977. Thereafter the suit land has been in possession of Ganikhan and Chhotekhan, the plaintiffs, who have been activating the same that the defendants haw begun to deny the plaintiffs' title in the suitland and want to dispossess them forcibly. Hence the suit for declaration of title to the effect that the plaintiffs be declared to be Bhumiswamis in possession of the suit land and for issuance of a permanent injunction for restraining the defendants from interfering with possession of the plaintiffs ever the land in dispute.

3. Along with the plaint the plaintiffs sub-mitted an application for issuance of a temporary injunction on 10-5-1977 in which on the basis of the aforesaid facts a prayer for issuance of a temporary injunction was made restraining the defendants from interfering with possession of the plaintiffs over the suit land. An ex parte injunction was issued by the trial Court on 11-5-1977. Against this order the defendants preferred Misc. Appeal No. 98 of 1977, which was allowed by order dated 5-12-1977 and order granting ex parte injunction was set aside and it was directed that the trial Court should decide the ap-plication for grant of interim injunction after hearing both the parties. On 12-12-1977 the defendants submitted an application for issuance of a temporary injunction under Order 39, Rr. 1 and 2 and Section 151, C P. C. restraining the plaintiffs from interfering with their possession over the land in dispute and to dismiss the application submitted by the plaintiffs for grant of a temporary injunction. The defendants had submitted reply to the ap-plication submitted by the plaintiffs for grant of a temporary injunction, on 8-11-1979, stating that the suit land was m possession of Allabelikhan in pursuance of the compromise and after the death of Allabelikhan on 4-5-1977 the defendants are in possession of the land in dispute and crops sown by the defendants arc standing on the soft land. Accordingly, the plaintiffs are not entitled to issuance of a temporary injunction. The plaintiffs by their reply dared 26-3-1980 opposed the application submitted by the defendants for issuance of a temporary injunction against them.

4. During the pendency of the suit pro-ceedings under Section 145, Cr. P. C. were started by Police Berma in the Court of the Sub-Divisional Magistrate, Depalpur, since there was apprehension of breach of peace on account of disputes between the parties in respect of the lend comprised in Survey Nos. 437, 458 and 457, situated in village Betma-khas and that comprised in Survey Nos. 471 and 472, situated in village Daulatabad. In these proceedings the Sub-Divisional Magis-trate by order dated 20-6-1978 decided thatGanikhan and others (applicants-herein) werein possession of the land in dispute on thedate of the preliminary order, i.e. 27-10-1977 and for two months before the said date and declared that petitioners were entitled to be in possession till they were evicted therefrom in due course of law and also forbade the non-applicants from disturbing possession of the applicants. During pendency of the aforesaid proceedings, the lands in dispute were attached and put in possession of two receivers. As a result of the final order dated 20-6-1978, passed by the Sub-Divisional Magistrate, the applicants got possession of the lands in dispute on 20-6-1978 and on 23-6-1978 through the police Betma and since then they are in possession thereof. Against the said order of the Sub-Divisional Magistrate the non-applicants filed a revision in the Court of the Addl. Sessions Judge, Indore, who by order dated 17-9-1979 set aside the order passed by the Sub-Divisional Magistrate and directed him to re-attach the lands and to keep them under attachment in possession of the Supardgidar till the competent Civil Court determines rights of the parties with regard to possession of the lands. The applicants-herein preferred a revision (Revision No. 338 of 1979) against this order which was allowed by order dated 18-3-1980 in which it has been held that 'today un-disputedly possession of the land in question being with the applicants over which they have sown their crops, no useful purpose will be served by asking them to hand over the possession to the Supratdar.' With these observations the order passed by the Addl. Sessions Judge, Indore, directing the Sub-Divisional Magistrate, Depalpur, to re-attach the property and deliver possession to Supardgidar was set aside by this Court and the case was sent back to the Sub-Divisional Magistrate to decide the case on merits in accordance with Section 145(4), Cr. P. C. after giving opportunity to the parties to adduce their evidence.

5. The trial Court has by its order dated 12-2-1981, granted the application submitted by the plaintiffs-applicants for issuance of temporary injunction against the defendants and rejected that submitted by the defendants for issuance of temporary injunction against the plaintiffs on the grounds that the plaintiffs are in possession of the suit land and the defendants have no right to disturb their possession. Aggrieved by this order the defendants preferred an appeal, which has been allowed by the learned Addl. District Judge by the impugned order. Hence this revision.

6. In this revision it was contended by Shri G. M. Chaphekar, learned counsel for the applicants that the impugned order awholly arbitrary and without jurisdiction, inasmuch as possession of the suit land was not with the defendants, but has been with the plaintiff. Therefore, the injunction granted in their favour by the trial Court could not be vacated and that the order of issuance of warrant for delivery of possession of tha suit land to the defendants is wholly unauthorised and has the effect of overriding the specific order passed by this Court on 18-3-1980, in the revision arising from proceedings under Section 145, Cr. P. C, directing continuance of possession with the plaintiffs and that the impugned order is contrary to the well-established principles of law governing the grant of temporary injunction, inasmuch as although the trial Court has rightly found prima facie case, balance of convenience and irreparable injury to be in favour of the plaintiffs, the learned Addl District Judge has reversed the same on tha basis of illegal grounds insufficient for the purpose.

7. Shri R. G. Waghmare, learned counsel for the defendants-non-applicants argued in support of the impugned order and placing reliance on the ratio of Rama v. Mangilal, (1973 Jab LJ 914) and the order passed in Uderam v. Daluram, (Civil Revn. No. 393 of 1979, dated 4-8-1981) (Indore Bench), contended that the conduct of the plaintiffs in securing possession in proceedings under Section 145, Cr. P. C. amounts to overreaching the Court. Therefore, the order of issuance of warrant of delivery of possession from them to the defendants-non-applicants is just and proper and deserves to be maintained.

8. Having heard the learned counsel for the parties, I have come to the conclusion that this revision deserves to be allowed.

9. In this case on the one hand the plaintiffs-applicants submitted an application for issuance of a temporary injunction alleging that they were in possession of the suit land at the time of initiation of proceedings i. e., 10-5-1977. In support of their case on behalf of the plaintiffs, the affidavits of Ganikhan dated 10-5-1977 and Chhotekhan dated 10-5-1977 were submitted and certified copies of (i) order dated 16-12-1976, passed in Civil Suit No. 28-A of 1969, (Allabelikhan v. Majid-khan.); (ii) compromise petition dated 21-1-1977 in Civil Suit No. 28-A of 1969; (iii) order of compromise dated 21-1-1977, passed in the said suit; Kistbandi Khataunis of the year 1976-77, in respect of the suit land, situated in village Betmakhas; (iv) Kistbandi Khataunis of 1976-77 in respect of the land situated in village Daulatabad; (v) khasras pertaining to the suit land situated in villageDaulatabad; (vi) Khasras of the years 1974 to 1976-77 in respect of the suit land situated in village Betma-khas were submitted along with the plaint; and thereafter certified copy of the order passed in Cr. Revision No. 338 of 1979, dated 18-3-1980 and certified copy of the sale deed executed by Allabelikhan in favour of Narayan dated 24-6-1965 were also submitted on behalf of the plaintiffs. On behalf of the defendants no affidavit in support of their application for issuance of temporary injunction was filed. So also no counter-affidavit has been filed in answer to die affidavits of the plaintiffs, However, on 12-4-1979 the defendants submitted certified copy of the order dated 19-6-1978 rejecting transfer application as not pressed.

10. Now, after taking into consideration the affidavits submitted on behalf of the plaintiffs and the documents submitted on behalf of the parties, the learned trial Judge has reached the conclusion that the plaintiffs are in possession of the suit land. The circumstances taken into consideration for reaching this conclusion by him are, (i) the factum of sale of land by Allabellikhan in favour of Narayan, vide the registered sale deed dated 24-6-1963; (ii) the compromise dated 21-1-1977, effected in Civil Suit No. 28-A of 1969, which bears signatures of the plaintiffs Ganikhan and Chhotekhan merely and not of other plaintiffs. As such, it has no binding effect as against the other plaintiffs; (iii) that in the revision arising out of proceedings under Section 145, Cr. P. C., it has been held by this Court that possession is with the plaintiffs. On the basis of this reasoning the learned trial Judge has rejected the application submitted by the defendants for restraining the plaintiffs from interfering with their possession on the suit land and granted temporary injunction in favour of the plaintiff-applicants, restraining the defendants-non-applicants from interfering with their possession over the suit land.

10-A. Now, in order to reverse the aforesaid reasoning the learned Addl. Dist. Judge has observed that according to the aforesaid compromise, possession of Allabelikhan over the suit land was to continue during his lifetime and after his death his heirs will be entitled to hold the land. Accordingly, possession of the suit land will be regarded to have remained with Alabelikhan up to the date of his death, i.e. 4-5-1977, and after his death his heirs will be deemed to have entered into possession thereof. Khasras of the years 1976-77 show Allabeli to be in possession of the suit land through Chandkhan. Onthe basis of this reasoning the learned Addl. District Judge has held that on the date of institution of the suit the plaintiffs were not, and the defendants were, in possession of the land in dispute. Since the order of the Sub-Divisional Magistrate, by virtue of which the plaintiffs got possession over the land in dispute is no longer in force and has been set aside by this Court in Criminal Revision No. 338 of 1979, vide order dated 18-3-1980, the learned Addl. District Judge directed issuance of warrant for delivery of possession of the suit land from the plaintiffs to the defendants and further vacated the injunction granted by the trial Court in favour of the plaintiffs and has issued an injunction in favour of the defendants against the plaintiffs not to interfere with the possession of the defendants over the suit land until decision of the suit. This is the long and short of the reasoning employed by the learned Addl. District Judge for reversing the order passed by the trial Court in favour of the plaintiff-applicants,

11. Now, so far as the effect of the aforesaid compromise goes, the learned Addl. District Judge appears to have wholly overlooked the averments made by the plaintiffs on the point in the plaint as well as in their application for issuance of temporary injunction to the effect that after the death of Allabelikhan, they entered into possession of the suit land. In their affidavits dated 10-5-1977, Ganikhan and Chhotekhan have clearly stated that after the death of Allabelikhan they are in possession of the suit land, and that the crops sown by them are standing on the land in dispute. Their affidavits on the point have gone unchallenged. No cross-examination was either demanded or any counter affidavit filed on behalf of the de-fendant-non-applicants to controvert the facts so averred by them. So far as the effect of recitals in the aforesaid compromise goes, what is stated therein is merely that possession will remain, during his lifetime, with Allabelikhan and he will not alienate the land in question in any manner whatsoever and after his death, whosoever may be his heirs will become owners of the land. Thus, possession was visualised to be co-terminous with the life of Allabelikhan. Now, the plaintiffs have averred that on the death of Allabelikhan, they have entered into possession of the suit land, which fact having not been controverted, had been rightly accepted by the trial Court. So far as the question of entitlement to hold the land is concerned, although the plaintiffs have asserted that forreasons stated in the plaint-paras 6 and 8, they are entitled to hold the suit land as Bhumiswamis, yet the question of entitlement is foreign to the scope of these proceedings.

12. So far as the effect of entries in the revenue records is concerned, the Kistbandi-Khataunis of the years, 1976-77, in respect of village Betmakhas and village Daulatabad have been brought on record. In the Kist-banda Khataunis names of persons entitled to hold the land are entered, which include the names of the plaintiffs along with that of Allabelikhan. So far as Khasra pertaining to the land situated in village Daulatabad is concerned, it does not contain the year to which it pertains and the column pertaining to the years are lying blank. Moreover, there is no date of issuance of the copy under the signatures of the Patwari of Halka No. 32. Accordingly, it cannot be regarded to have any presumptive value to show as to on what date Allabelikhan was in possession of the land to which the Khasra pertains. So far as the other certificate (copy of Khasra) issued by the Patwari is concerned, it pertains to the land situated in village Betmakhas. It records in the column pertaining to the year 1976-77 that Allabelikhan was in possession through Chandkhan. This certificate purports to have been isued by the Patwari on 3-2-1977, i. e. during the lifetime of Allabelikhan. Accordingly, it can hardly be of any assistance for deciding as to whether after the death of Allabelikhan, which took place on 4-5-1977, the plaintiffs had entered into possession or not. That apart, copies of the aforesaid Khasras, which purport to have been issued by the Patwari, do not bear any seal nor it appears from them that they are certified copies given under any rules. Accordingly, such copies cannot be acted upon. This aspect of the case appears to have been overlooked by the learned Addl. District Judge.

13. The other reasoning employed by the learned Addl. District Judge in the impugned order is that 'the plaintiffs had obtained possession under orders of the Sub-Divisional Magistrate, which has been set aside by this Court in Criminal Revn. No. 338 of 1979, vide order dated 18-3-1980. Accordingly, it will be just to order that the defendants be placed in possession of the suit land'. This is what has been stated in para 10 of the impugned order. The learned Addl. District Judge has for the aforesaid reason ordered issuance of warrant for delivery of possession of the suit land from the plaintiffs to the defendants, (vide para 9). The approach of the learned Addl. District Judge on the pointappears to be illegal. Firstly, the learned Addl. District Judge has overlooked the specific direction made by this Court in tho aforesaid revision, vide para 13, which is to the effect that 'today undisputedly possession of the land in question being with the applicants, over which they have sown their crops, no useful purpose will be served by asking them to hand over the possession to the Supratdar.' After making this observation, this Court set aside the direction to tho contrary made by the learned Additional Sessions Judge. In the said revision, it has further been observed in para 14 that 'the order passed by the lower revisional Court directing the learned Sub-Divisional Magistrate, Depalpur to re-attach the property and deliver its possession to the supratdar, is set aside'. As a consequence of the aforesaid observation and direction, it had to be regarded by the learned Addj. District Judge that the plaintiffs (the applicants in that revision) were to continue to remain in possession of the suit land. Secondly, the learned Addl. District Judge appears to have set at naught the effect of the aforesaid orders passed by this Court. This amounts to arrogating to himself such a jurisdiction, which cannot be regarded to be legally exercisable by the learned Addl. District Judge. Thirdly, it does not appeal to reason as to in what circumstances the learned Addl. District Judge was persuaded to pass an order directing issuance of warrant for delivery of possession from the plaintiffs to the defendants, which was directed to be continued with them (the plaintiffs) by order of this Court, referred to above, and that too without any application being made by the defendants for the purpose. Their application for grant of temporary injunction was grounded on too hypothesis that possession is with the defendants and consequently they prayed for protection of their possession by issuance of a temporary injunction. No prayer was made by the defendants by any application for an order to put them into possession. In the appeal preferred by the defendants before the learned Addl. District Judge the only prayer, which is made is to the effect that 'the order should be set aside and the respondent (plaintiffs) be restrained from interfering with the possession of the defendants over the suit land. No prayer to the effect that warrant should be ordered for delivery of possession of the suit land from the plaintiffs to the defendants, was made, in the memorandum of appeal. No prayer to that effect was made by the defendants before the learned Addl. District Judge by submitting any applicationether. Accordingly, there appears to be neither any basis nor any justification for passing the order for issuance of a warrant for delivery of possession. In the garb of doing justice to the defendants, the learned Addl. District Judge appears to have rather perpetrated injustice on the plaintiffs by depriving them of possession, which was continued by this Court, vide order dated 18-3-1980, referred to above.

14. In order to resist the aforesaid conclusion, Shri Waghmare, learned counsel for the defendant-non-applicants contended that in case of over-reaching of the Court by a party in view of the ratio of the case of Rama (1973 lab LJ 914) (supra) and that ratio of Uderam (Civil Revn. No. 393 of 1979, D/-4-8-1981) (Madh Pra) (supra), passing of an order directing delivery of possession is justified. None of the aforesaid cases concern themselves with the situation of present character, because in none of those cases possession of a party was ordered to be delivered to and/or to be continued by a Court in proceedings under Section 145, Cr. P. C. Moreover, the order for issuance of warrant for delivery of possesion cannot be regarded to be permissible, in the facts and circumstances of the case. The defendants cannot be granted a relief, which they could have either obtained by starting appropriate proceedings for the purpose in a Court competent to grant the relief or by instituting a suit for recovery of possession. The case of over-reaching of the Court by a party falling within the ratio of the aforesaid cases appears to be distinguishable from the present case. Unlike those cases, in the present case the plaintiffs have not forcibly dispossessed the defendants by taking the law into their own hands. Accordingly, there is no question of any overreaching; more so, when the plaintiffs were on the date of the suit in possession of the suit land, as appears from the uncontroverted affidavits of the plaintiffs, Ganikhan and Chhotekhan. Accordingly, it has to be concluded that the plaintiffs were in possession of the land in dispute on the date of initiation of the proceedings, i.e. on 10-5-1977 and the attempt of the defendants to disturb their possession was foiled by the order ultimately passed by this Court on 18-3-1980, providing for continuity of their possession. Since the plaintiffs were in possession of the suit land, the prima facie case was in their favour. The balance of convenience also will be regarded to be in their favour, inasmuch as the plaintiffs cannot be left at the mercy of the defendants. Since the defendants are out of possession and the plaintiffs are in possession,comparatively greater mischief will result to the plaintiff if the injunction is withheld, and since dispossession of the applicants will result in irreparable injury, temporary injunction has to be issued to protect their possession.

15. In view of the discussion aforesaid, it is clear that the learned Addl. District Judge has acted in an illegal manner in reversing the order passed by the trial Court and his approach in the case manifests a clear case of exercise of jurisdiction in an illegal manner and/or with material irregularity. If the impugned order is allowed to stand, it will occasion failure of justice and cause irreparable injury to the plaintiff-applicants.

16. As a sequel to the aforesaid discussion, this revision succeeds and is allowed. The impugned order passed by the learned Addl. District Judge is set aside and that passed by the trial Court is hereby restored. As a result the injunction granted by the trial Court restraining the defendants from interfering with the possession of the plaintiff-applicants is hereby restored and it is ordered that that order will remain operative until the decision of the suit. Costs all throughout in these proceedings will be paid by the defendant-non-applicants to the plaintiff-applicants. Counsel's fee is taxed at Rs. 100/-.